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Saturday, April 19, 2014

"The First Amendment Guide to the Second Amendment"

The title of this post comes from this recent article by Professor David Kopel, the abstract of which states:

As described in Part I of this article, the Supreme Court has strongly indicated that First Amendment tools should be employed to help resolve Second Amendment issues. Before District of Columbia v. Heller, several Supreme Court cases suggested that the First and Second Amendments should be interpreted in the same manner. Heller and McDonald v. City of Chicago applied this approach, using First Amendment analogies to resolve many SecondAmendment questions.

Part II of this Article details how influential lower court decisions have followed (or misapplied) the Supreme Court’s teaching. Of course, precise First Amendment rules cannot necessarily be applied verbatim to the SecondAmendment. Part III outlines some general First Amendment principles that are also valid for the SecondAmendment. Finally, Part IV looks at how several First Amendment doctrines can be used in Second Amendmentcases, showing that some, but not all, First Amendment doctrines can readily fit into Second Amendmentjurisprudence.

April 19, 2014 in First Amendment, Gun Policy | Permalink | Comments (0)

Friday, April 11, 2014

Oregon judge holds flashing headlights to alert other drivers of law enforcement is protected under First Amendment

The AP reports that an Oregon judge has ruled that the First Amendment protects drivers who flash their headlights to alert other drivers of the presence law enforcement as free speech. According to the judge,  "The government certainly can and should enforce the traffic laws for the safety of all drivers on the road. However, the government cannot enforce the traffic laws, or any other laws, to punish drivers for their expressive conduct." 

Speed-trapAs the article explains:

Hauling a truckload of logs to a Southern Oregon mill last fall, Chris Hill noticed a sheriff's deputy behind him and flashed his lights to warn a UPS driver coming the other way.

 

The deputy pulled over Hill on U.S. Highway 140 in White City and handed him a $260 ticket for improperly using his headlights, saying another deputy had seen the flashing lights from behind the UPS truck and alerted him to stop the log truck because of the signaling.

 

Outraged, Hill decided to fight the ticket, and on Wednesday, a Jackson County Justice Court judge dismissed the citation, finding that motorists flashing their headlights amounts to speech protected by the Oregon Constitution.

 

Judge Joseph Carter determined the law covering the use of high beams was valid, but was unconstitutional as it was applied by the deputy.

First Amendment protection of such conduct seems entirely reasonable to me. SCOTUS has routinely extended speech protection to generalized expressions, even when the reasoning for such expressions is not known. For example, it has protected signatures on referendum petitions, the wearing of black armbands in protest of the Vietnam War, and political yard signs. The Fourth Circuit recently even granted speech protection to support for a political candidate's campaign on Facebook by clicking the "Like" icon. Flashing one's headlights at another driver (for whatever reason) seems no less worthy of protection. 

The most compelling detail in this story is that the driver who originally received the ticket represented himself.  

As the article notes, Mr. Hill is an experienced driver who decided to fight the citation to protect himself against an increase to his insurance rate. So, he researched the issue and decided the free speech argument was applicable to the conduct for which he was ticketed. And the judge agreed.

Nicely played, sir! Nicely played indeed.

April 11, 2014 in First Amendment, Freedom of Speech | Permalink | Comments (2)

Friday, April 4, 2014

A brief summary of the development of campaign finance laws

Today, WaPo reporter Jaime Fuller provides this intriguing historical summary of political spending and attempts by federal and state governments to regulate campaign finance. She FreedmenVotingInNewOrleans1867begins by recounting the early efforts of a young George Washington to persuade voters by the then-common practice of treating--whereby candidates provided banquets of food and liquor at the polling place; she ends, of course, with the Supreme Court's decision earlier this week in McCutcheon v. FEC

After recounting Washington's electioneering efforts in 1757, Fuller jumps to the campaign finance law passed by Congress in 1867 making it illegal to solicit donations from naval yard workers. However, the intervening years were not bereft of efforts to curb seemingly excessive spending in campaigns.

Colonial assemblies and state goverments routinely attempted to reduce the influence of money in politics. As Chilton Williamson documents in his book American Suffrage From Property to Democracy, 1760- 1860, "Colonial assemblies tried to curb these electoral abuses by a spate of laws...against the treating of electors[.]" Richard Dinkin notes, for example, the Maryland colonial assembly's attempt to limit such practices, citing a 1768 election law:

[T]hat  on any petition for treating, this house will not take into consideration, or regard the greatness or smallness of any treat, but will in all cases, in which any person or persons,...directly or indirectly give, present, or allow to any person having a voice or vote in such election, any money, meat, drink, entertainment or provision, or make any present, gift reward, or entertainment,...whatsoever, in order to be elected, or for being elected, will declare the election of such person voice.

Additionally, the move from public to private voting by the adoption of the Australian ballot--or secret ballot--was often viewed as an effort to curtail campaign spending. In fact, the eventual popularization of the Australian ballot in the U.S. is commonly attributed to Henry George's 1883 article titled Money in Elections. Notably, he writes:

To begin with what I conceive would be the greatest single reform. By adopting the Australian plan of voting, now for some years in successful operation in England, we could abolish at one stroke all the expense of printing and distributing tickets, and all the expense and demoralization consequent on the employment of “workers,” and very much lessen the importance of party nominations and party machinery. Under that plan the ballots are printed at public expense, and contain names of all persons duly registered as candidates. When the voter approaches the poll he is handed one of these ballots. He enters a compartment, where a pencil or pen and ink are provided, and, concealed from observation, strikes off the names of those he does not which to vote for, or as in England, indicates by a mark those he prefers, and then folding up the ballot, presents it… [T]he corruption of primary politics, and the practice of selling votes in nominating convents, would be destroyed, and the practice of blackmailing candidates by the so-called indorsement of political clubs whose only object is to make money, would be destroyed…[T]he practice of buying votes, and that of coercing voters by error of discharge from employment, would be in large part, if not altogether, broken up by the difficulty of telling how a man voted. There would be no putting a ticket in a man’s hand and keeping an eye on it until deposited.

CRL&P related posts:

April 4, 2014 in Election Law, First Amendment, Freedom of Speech, Right to Vote | Permalink | Comments (0)

Tuesday, April 1, 2014

"The law need not choose between protecting religious and secular convictions."

University of Virginia law professor Micah Schwartzman has two new essays exploring the propriety of giving special treatment to religion. In Religion as a Legal Proxy, he argues:

The idea that religion warrants special treatment has been criticized as violating norms of equality and fairness. In response, Andrew Koppelman has argued recently that the American legal tradition of treating religion as a “good thing” is justified on the grounds that when interpreted at a sufficiently high level of abstraction, religion serves as an indispensable legal proxy for a plurality of important goods. In this essay, I argue that using religion as a legal proxy remains vulnerable to charges of unfairness toward those with secular ethical and moral convictions. The case for adopting religion as a proxy turns on arguments against potential substitutes. Even if no category can serve as a complete substitute for religion, however, its use as a proxy can be complemented by protections for the freedom of conscience. The law need not choose between protecting religious and secular convictions. It can and should provide significant protections for both.

Similarly, in the abstratct of Religion, Equality and Public Reason, he writes:

A growing number of critics have asked whether singling out religion for special treatment is morally justifiable. In Religion Without God, Ronald Dworkin sides with those who reject the distinctiveness of religion. In this essay, I situate Dworkin’s argument within the larger debate. I then argue that his view is driven toward replacing a distinction between religious and secular commitments with one that turns on the difference between public and nonpublic values. The latter distinction is central to the idea of public reason. Although Dworkin resisted this idea, his arguments against the distinctiveness of religion lead him inexorably to some conception of it, suggesting the inevitability of a commitment to public reason for those who occupy a certain place in the debate about whether religion is special.

April 1, 2014 in First Amendment, Freedom of Religion | Permalink | Comments (0)

Thursday, March 6, 2014

"Race To Stop 'Revenge Porn' Raises Free Speech Worries"

The title of this post comes from this NPR article describing the concerns of some free speech advocates that states' efforts to criminalize revenge porn threaten First Amendment rights. The ACLU, for example, has expressed concerns that such laws "tread[] on very thin ice constitutionally." As CRL&P has observed, only two states -- California and New Jersey -- have enacted laws criminalizing the non-consensual, retaliatory posting of nude and pornographic images, but states are increasingly undertaking efforts to criminalize such conduct. The article states: 

Many states, according to NCSL data, already have laws on the books that prohibit "taking nude or sexually explicit photographs of a person without a person's knowledge or consent." The issue of malicious online posting or distribution of such photos or videos, however, including "selfies" and other material that may have been initially shared with full consent, had not been widely addressed.

 

The panoply of revenge porn bills that have been introduced range from those that would make such posts a misdemeanor that carries a fine, to those that would make it a felony. Some legislation also targets with civil penalties websites that post the images, including those that attempt to extract payment from the subjects to take down the offending photos or videos.

Despite concern over such laws, constitutional scholars have said that laws criminalizing revenge porn could be crafted so as to conform with the First Amendment. NPR asked the ACLU's Lee Rowland about this, who offered the following:

ImagesLegislation that can withstand court scrutiny, Rowland says, should include four main elements: It must designate that the perpetrator had malicious intent, that his or her action caused actual harm, that he or she acted knowingly without consent, and that the victim had an expectation of privacy.

 

"Without those safeguards," she said, "these laws face an uphill battle in the courts. Not only are they unconstitutional, they are unwise — there simply isn't another example I'm aware of where there are criminal penalties for sharing otherwise lawful speech."

 

Rowland gives this example: If an Arizona bill currently being considered were to pass, a person who receives an unsolicited text of a nude selfie and shows it to a friend could be charged with a crime.

 

But the California bill, signed into law last October and on which the ACLU took a neutral position, has been criticized by revenge porn activists as not going far enough. Perpetrators can be charged with disorderly conduct for posting or distributing intimate photos, videos and recording to intentionally inflict emotional harm on the victim. The law, however, doesn't apply to photos the victim has taken him- or herself and shared — so-called sexual "self-portraits" — and does not address revenge porn websites.

 

The revenge porn problem can be tackled, but carefully, constitutional experts advise, with full attention given to the two constitutional values at play: privacy and free speech.

 

Easing the sting of some of the repercussions of the Internet, Rowland says, is desirable but a very tricky thing to do.

CRL&P related posts:

March 6, 2014 in First Amendment, Revenge Porn | Permalink | Comments (0)

Thursday, February 20, 2014

Personal drone gets off-duty journalist suspended and violates the First Amendment, journalist says

The story of Pedro Rivera and his personal drone is in full swing with The Courthouse News Service bringing more today. In his suit, Rivera claims that a police lieutenant called his boss claiming "he had interfered with the police department's investigation of the accident, and had compromised the crime scene's 'integrity.' " He says the lieutenant suggested that he be suspended; or, perhaps he exchanged Rivera's suspension for his continued "goodwill." CNS's report begins:

In a bizarre twist to a civil rights issue, a news photographer claims in a federal lawsuit that Hartford police wrongfully arrested him for using a drone to photograph a fatal car accident - at an elevation of 150 feet, far too high to interfere with police, as officers claimed.     Pedro Rivera, a photographer and editor for a local television news station, claims he was not breaking any laws or hindering emergency operations by recording police activity after a Feb. 1 fatal car accident.

 

YmJmM2I5Yjc5MyMvTkZkNkVjWjdxYmlHUkwtU1FRaFVuS2VtRDl3PS84NDB4NTMwL3NtYXJ0L2ZpbHRlcnM6cXVhbGl0eSg3NSk6c3RyaXBfaWNjKDEpL2h0dHAlM0ElMkYlMkZzMy5hbWF6b25hd3MuY29tJTJGcG1idWNrZXQlMkZzaXRlJTJGYXJ0aWNsZXMlMkY1MTcwNSUyRm9yaWdpbmFsLmpwZw=="On February 1, 2014, the plaintiff heard on a police scanner that there was a serious motor vehicle accident in the City of Hartford. He responded to the scene of the accident, where he operated a remote-controlled model aircraft, colloquially known as a 'drone,' he owns to hover over the accident scene and to record visual images of the accident scene. His device was hovering at an altitude of 150 feet. At all times relevant to this action, the plaintiff was standing outside of the area denoted as the crime scene by officers responding to the accident. He was standing in a public place, operating his device in public space, observing events that were in plain view," Rivera says in his brief, 5-page lawsuit.

 

It continues: "Although the plaintiff is employed as a photographer and editor at a local television station, he was not acting as an employee of the television station at the time, a fact he made clear to police officers who were also at the accident scene, including defendant [police Sgt.] Yergeau and others.

 

"The plaintiff did acknowledge to defendant Yergeau and others that he does, from time to time, forward the video feed from his drone to the television station for which he works."

 

Rivera claims that Yergeau "and other uniformed officers of the Hartford Police Department surrounded the plaintiff, demanded his identification card, and asked him questions about what he was doing. The plaintiff did not feel as though he were free to leave during the course of this questioning."

 

He claims the police "demanded that the plaintiff cease operating the device over the accident scene, and that he leave the area."

 

But Rivera's attorney, Norman Pattis, claims his client wasn't breaking any laws.

February 20, 2014 in First Amendment | Permalink | Comments (1)

Wednesday, February 19, 2014

Man's revenge-porn plot against ex-lover rebuffed by court order

The Maine Supreme Court has refused the plea of a man who sought to expose his ex-lover bare on the internet. It upheld the lower court's order of protection against the would-be revenge porn distributor's upcoming site, finding the would-be revenge porn distributor's threats to "constitute abuse." He had commenced to threaten his ex-lover after she met with his wife and exposed their affair. The Courthouse News Service reports

A married man who threatened to disseminate naked photos of his former mistress online must face an order of protection, the Maine Supreme Court ruled.

 

Ellen Clark and John Brian McLane had an affair for several months from 2011 to 2012, according to the decision, which notes that the "facts are undisputed." After the relationship ended, Clark told McLane's wife about the affair.

 

In early 2013, McLane sent Clark an email "containing a litany of insulting and derogatory remarks," Justice Ellen Gorman wrote for the court.

 

McLane also told Clark that he had obtained websites in her name on which he would post videos and nude photos of her. He said he was also setting up accounts with major search engines so the website would come up when Internet users searched for her name.

 

In addition, Clark told her that he had collected the email addresses of at least 18 of her colleagues, with whom he planned to share links to the websites.

 

"Guys will have your cell number, as well as your work number to get a hold of you and ask you out," McLane wrote.
 

He included a link to the website which read: "The naked pictures of EJ Clark will be coming soon ... along with her cell phone number and her work number for you to call and arrange a date."

 

Clark obtained a year-long protection order against McLane from a district judge in Biddeford after she said that she believed McLane would follow through with the website plan.

 

The court order prohibited McLane from contacting Clark, and directed McLane to take the websites down.

 

The Maine Supreme Court refused to disturb that order last week, concluding that McClane's conduct did in fact constitute abuse.

 

"Abuse comes in many forms, and neither the plain language of the protection statute nor our prior interpretations of it requires evidence of physical abuse or the risk of physical harm to sustain a finding of abuse," Gorman wrote.

 

The definition of abuse includes intimidation designed to prevent someone from engaging in activities which they have they right to pursue. In this case, the activity is Clark's right to go to work, according to the ruling.

 

"Clark testified that McLane's threats, which focused in large part on Clark's work colleagues and future employment prospects, were an attempt to humiliate her an cause her to avoid going to work," Gorman wrote. "Given the liberal construction of the statute that the legislature directs us to apply, the evidence Clark presented is sufficient as a matter of law to support the court's finding of abuse."

CRL&P daily reads:

February 19, 2014 in First Amendment, Revenge Porn | Permalink | Comments (0)

Judge considering First Amendment right to record public police activities with drones

Pedro Rivera was suspended for a week from his job at a local television station in Connecticut after police ordered him to pack up his drone and go home. At just two-and-half pounds, the device had been poking around--hovering somewhere around 150 feet. The police felt intruded upon--perhaps by the noise, or by its shadow, or perhaps even out of concern that drones would disrupt the common grackles soaring towards Maine. Regardless, practical or sentimental,  the police tattled to Rivera's employer, who sent him to his sofa for a week. Rivera sued. Now, a federal judge will consider whether there is a First Amendment free speech right to record police activities in a public space using drones.  ABC brings us the story, which states:

A journalist filed a lawsuit Tuesday alleging that Hartford police officers violated his free-speech rights by questioning his use of a remote-controlled aircraft to record images of a car wreck.

 

Pedro Rivera asked a federal court to weigh in on the appropriate uses for aerial drones as policymakers try to catch up with technology that has made them far more versatile.

 

His complaint says that officers demanded that Rivera stop flying the remote-controlled aircraft, asked him to leave the area and told his employer that he had interfered with a police investigation.

 

"I told them I was there on my personal time," said Rivera, who was suspended for a week from his on-call job with a Connecticut television station. "They went to my employer and caused a lot of problems for me and my job."

 

The lawsuit, which was filed in U.S. District Court against the Hartford Police Department, seeks damages for Rivera but also asks the court to declare that he did not break any laws by operating the 2 1/2-pound, four-rotor aircraft above the scene of the fatal Feb. 1 wreck. It says that Rivera made clear he was not working for the television station, WFSB-TV, although he acknowledged that he occasionally sent the video feed from his drone to the station.

 

"The suit is as much about trying to make sure police officers don't legislate from the beat as it is about getting a court to weigh in and say what the standards are," said Norm Pattis, the attorney for Rivera.

 

Rivera, 29, of Hartford, argues in the lawsuit that police violated his First Amendment right to free expression as well as his Fourth Amendment right to be free from unreasonable seizures. Although his device was hovering at an altitude of 150 feet, he said he was operating in public space and observing events that were in plain view.

 

Lt. Brian Foley, a Hartford police spokesman who is named as a defendant in the suit, said he could not comment on pending litigation.

 

Foley said earlier this month that police questioned Rivera but said officers did not ask him to ground the drone. At the time, he said the only concerns for police were for the safety of the officers and the privacy of the victim, whose body was left hanging out of a mangled car.

 

The Federal Aviation Administration, which is investigating Rivera's use of an aerial drone, has discouraged their use for commercial purposes, including journalism.

 

A law passed by Congress two years ago requires the FAA to integrate unmanned aircraft of all sizes into the domestic airspace by late 2015, but it's clear the agency won't meet that deadline. The FAA has been working for more than four years on regulations to permit small drones — those weighing less than 55 pounds — to be used for commercial purposes, but it repeatedly has missed deadlines for proposing those regulations.

 

Last month, the FAA again moved back the date it expects to propose those regulations to November of this year. Even then, it will be just a proposal. It takes months and often years before proposed regulations become final.

 

The FAA is tackling small drones that are flown under about 400 feet — below where most manned aircraft fly — first because they're the easiest. Regulations to permit commercial use of larger drones are even further behind.

There are, of course, significant policy considerations as to whether and under what circumstances the use of commercial drones should even be permitted. However, I'm particularly interested in considering the propriety of distinguishing between on-the-job journalists' and private citizens' use of drones. ABC reported that the plaintiff in this case was not on-the-job at the time he employed the drone, but I'm not convinced that this ought to be an important distinction--particularly as an advocate of citizen journalism. Thankfully, the trend seems in favor of protecting citizens' right to record police activities in public spaces. As it should be.

February 19, 2014 in First Amendment | Permalink | Comments (0)

Friday, February 7, 2014

Bipartisan bill would end online access to some court records

Access to Wisconsin's online court records database soon could be limited. Indeed, much to the chagrin of some open government advocates, the Wisconsin legislature is considering a bill that would prevent online access to court records in cases resulting in dropped charges or not guilty verdicts. The bill, of Imagescourse, is an attempt to shield people who have been charged but not convicted of crimes from the potential misuse of their records--certainly a legitimate concern. However, restricting online access to those records might be foolhardy. As the Milwaukee Journal Sentinel reports: 

Bill Lueders, president of the Wisconsin Freedom of Information Council, said the approach of the bill was "fundamentally wrongheaded" because the solution to some people misusing information should not be to cut off access to that information for all people.

 

Limiting access to CCAP would create an opening for private businesses to create their own, for-profit databases with all court records, Lueders said. That would mean the information would still be easily available, but people would have to pay for it.

 

If CCAP is turned into nothing more than a "compendium of guilty people," it would make it appear that every prosecutor in the state gets it right every time. That would be a "distorted view of what is actually happening in the courts," he said.

I'm inclined to align with those who think that citizens' access to information about the government should not be restricted. Such information, it seems to me, is particularly important when the government threatens the civil liberties of citizens--as it does during a criminal trial. The misuse of the information at issue here is certainly contemptible, but hiding this information places more power in the hands of the criminal justice system. This, I believe, is unacceptable.

The title of this post comes from this Journal Sentinel article, which begins:

The public would lose ready access to court records about people who were found not guilty or had charges against them dropped under a bill a bipartisan group of lawmakers wants to move through the Assembly.

 

The bill — which received a public hearing Thursday — would make sweeping changes to the state's popular online database known as Consolidated Court Automation Programs, or CCAP. The site, which receives nearly 8 million hits a day, for years has been run by the state courts with little oversight from the Legislature.

 

The site is widely used by landlords, employers, journalists and curious citizens. Some lawmakers have raised concerns that people misuse or misinterpret data on the site because it includes information about almost all court cases, including ones in which defendants have been found not guilty or prosecutors have dropped charges. The database also includes details on pending cases, in which people have been charged but courts haven't ruled on whether they are guilty.

 

Under the bill debated Thursday, cases would be removed from CCAP within 120 days after a criminal case or charge has been dropped, the defendant has been found not guilty or the case has been overturned on appeal and dismissed. Charges that were dropped but read into the record so they could be considered for charging purposes would remain on the site.

 

Assembly Speaker Robin Vos (R-Rochester) has spoken favorably of the concept, saying last fall cases involving those who have been found not guilty should not remain on the site.

 

Advocates of open government oppose the changes, arguing court officials have invested years of work in determining what information should be included on the site, including notifications that defendants are innocent until proven guilty and employers can use information on the site only in limited circumstances when deciding whether to hire someone.

 

But those who want to make changes to the system argue dismissed charges in the system can be misused and make it harder for people to get jobs or rent apartments.

CRL&P related posts:

February 7, 2014 in First Amendment, Web/Tech | Permalink | Comments (1)

Friday, January 31, 2014

The Forgotten Law of Lobbying

The title of this post comes from this fascinating historical analysis by Professor Zephyr Teachout of the evolution of lobbying in the United States--once considered "presumptively against public policy" but today accepted by many as protected by the First Amendment. Here's the abstract:

For most of American history, until the 1950s, courts treated paid lobbying as a civic wrong, not a protected First Amendment right. Lobbying was presumptively against public policy, and lobbying contracts were not enforced. Paid lobbying threatened the integrity of individuals, legislators, lobbyists, and the integrity of society as a whole. Some states had laws criminalizing lobbying; Georgia had an anti-lobbying provision in its Constitution. Inasmuch as there was a personal right to either petition the government, or share views with officers of the government, this right was not something one could sell -- it was not, in the term used by one court, a “vendible” -- a sellable item. Line-drawing between illegitimate paid lobbying and legitimate legal services was not easy, but in general courts enforced contracts where the thing being sold was expertise to be shared in a public forum, while refusing to enforce contracts where the thing being sold was personal influence to be shared in private meetings. 

During the mid-20th century, the practice of not enforcing lobbying contracts fell away. This change came from two things: the growing sanctity of contract, and the professionalization of the lobbying industry. State laws regulated lobbying instead of banning it. At the same time, as a constitutional matter, the law of lobbying occupied something of a no-mans land for many years -- paid lobbying was neither explicitly protected by the First Amendment nor explicitly not protected. Supreme Court cases suggested, but did not hold, that paid lobbying was a First Amendment right. Only recently, and without much judicial discussion, has the legal-academic community presumed that there is a unique First Amendment right to pay someone to lobby, or be paid to lobby, grounded in the speech and/or petition clauses of the First Amendment. The scope of that right is unclear. 

This Article tells the history of the earlier approaches towards lobbying. It explores the lobbying cases of the 19th and early 20th century courts, looking at the logic underpinning them and how courts distinguished between illegitimate lobbying and legitimate hiring of professional lawyers. 

This Article is largely historical, but has doctrinal implications. First, it shows that as a matter of practice, there is no historical consensus on a First Amendment right to lobby. Second, the length and breadth of the treatment of lobbying as wrong -- not a right -- is indirect evidence that the First Amendment was not intended to protect paid lobbying. Third, the reasoning of the courts that invalidated lobbying contracts is still relevant to the degree of protection, and the kinds of activities that might be worthy of greater or lesser protection.

January 31, 2014 in First Amendment | Permalink | Comments (0)

Wednesday, January 29, 2014

Ninth Circuit declines to reconsider decision upholding CA law banning gay-conversion therapy

The Ninth Circuit said today that it will not reconsider its decision upholding California's ban on gay-conversion therapy. In August, a three-judge panel of the court held that the law did not violate the First Amendment because it regulated conduct, not speech. Indeed, the court wrote:

We conclude that the First Amendment does not prevent a state from regulating treatment even when that that treatment is performed through speech alone... [T]alk therapy does not receive special First Amendment protection merely because it is administered through speech. That holding rested on the understanding of talk therapy as the treatment of emotional suffering and depression, not speech. (citations and internal quotations omitted).

Today, the Courthouse News Service reports:

5-Things-to-Know-About-Gay-Conversion-Therapy-2California's continued ban on gay-conversion therapy effectively hands the government a "powerful tool to silence expression," a dissenting 9th Circuit judge warned Wednesday.

 

Judge Diarmuid O'Scannlain made the remarks as his colleagues refused to hold an en banc rehearing after a three-judge panel with the federal appeals court upheld California's SB 1172.

 

The law prohibits state-licensed psychiatrists, psychologists and counselors from using sexual-orientation change therapy on patients younger than 18.

 

O'Scannlain argued Wednesday that the San Francisco-based panel who decided the issue in 2013 had improperly side-stepped the First Amendment by labeling as conduct what was essentially speech.

 

"In so doing, the panel contravenes recent Supreme Court precedent, ignores established free speech doctrine, misreads our cases, and thus insulates from First Amendment scrutiny California's prohibition - in the guise of a professional regulation - of politically unpopular expression," O'Scannlain wrote.

 

Empowered by this ruling of our court, government will have a new and powerful tool to silence expression based on a political or moral judgment about the content and purpose of the communications," he added.

The strength of our commitment to First Amendment principles occasionally is tried by the deplorable crusades of bigots and twits, and I find the promotion of gay-conversion therapy to fall sqaurely within that category. Nevertheless, the First Amendment protects such speech, so I'm happy to shrug off folks promoting such beliefs when I encounter them in public. However, the mental health treatment of teenagers is a horse of a different color, so to speak. Indeed, as Ken White commented at Popehat after the release of the Ninth Circuit's initial decision:

The persuasive force of the Ninth Circuit's ruling comes from two key points. First, you can't logically object to this law in particular without objecting to the entire structure of medical regulation that the courts have permitted. In other words, if you argue that parents have a fundamental right to inflict conversion therapy on their children, I think you have to argue they have a fundamental right to select "doctors" without medical degrees or doctors who will prescribe Laetrile or even doctors who will use therapies that could be affirmatively harmful to kids, like (for instance) unregulated rebirthing therapy.

 

Second, the law does not prohibit conversion therapy of adults, and does not prohibit speech endorsing or encouraging conversion therapy. As the Ninth Circuit acknowledges, California licensed therapists can lobby and agitate for conversion therapy, tell patients and their parents they support it (and that the patient should seek it elsewhere), express their views about homosexuality and conversion therapy, recommend the therapy once the patient reaches adulthood or in other jurisdictions, and even refer minors to unlicensed persons like ministers who are free to inflict conversion therapy.

 

In short, I'm not sure how you can logically strike down this law — or even subject it to strict scrutiny — without striking down every law and regulation of medical practice that touches on any remotely controversial practice.

January 29, 2014 in First Amendment, Freedom of Speech | Permalink | Comments (0)

Wednesday, January 22, 2014

Criminalizing Revenge Porn

The title of this post comes from this fascinating paper by Professors Danielle Citron and Mary Anne Franks, the abstract of which states:

The non-consensual publication of non-newsworthy sexually graphic images deserves criminal punishment. It produces grave emotional and dignitary harms, exacts steep financial costs, and increases the risks of physical assault. A narrowly and carefully crafted criminal statute can comport with the First Amendment. Criminalization of revenge porn is necessary to protect against devastating privacy invasions that chill self-expression and ruin lives.

Profs. Citron and Franks explain that history affirms a willingness to occasionally criminalize invasions of privacy, writing:

Criminal law should have a role in deterring and punishing egregious privacy invasions like revenge porn. Criminalizing privacy invasions is not new. In their seminal article The Right to Privacy, Samuel Warren and Louis Brandeis argued that “[i]t would doubtless be desirable that the privacy of the individual should receive the added protection of the criminal law.”Since 1890, state and federal lawmakers have criminalized privacy invasions, such as the non-consensual recording of individuals in contexts where they enjoy a reasonable expectation of privacy. 

Indeed, they observe that courts have rejected claims that the First Amendment protects "certain non-consensual disclosures of private communications, such as sex tapes, on the grounds that such communications are not matters of legitimate public concern." Yet, few states have been willing to pursue the criminalization of revenge porn--i.e., the non-consensual release of private sexual communication. So far, only New Jersey and California have passed such laws. Profs. Citron and Franks argue that the ambivalence persists because (1) people don't appreciate its real harms, and (2) they misconceive the scope of the victim's consent. They claim:

One reason for society’s acceptance of non-consensual pornography is the failure to recognize the grave individual and societal harms it inflicts. Until recently, non-consensual pornography seems to have been viewed as a tolerable embarrassment. Brave victims are now speaking out to describe the physical attacks, stalking, financial costs, and psychic damage caused by this conduct. 

 

Another explanation for our inattention is the faulty assumption that a victim’s consensual sharing of a sexually explicit photograph with a trusted confidante equals a wide-ranging permission to share those images with the public. Said another way, a victim’s consent in one context is taken as consent in all contexts. Consent, however, is context-specific. Individuals who agree to being photographed or filmed for one purpose do not necessarily agree to have their images used for another. 

 

The contextual nature of consent is a staple of information privacy law. The Fair Information Practice Principles, reflected in privacy regulation and best practices, make clear that permitting an entity to use information in one context does not confer consent to use it.

Profs. Citron and Franks suggest that federal law should criminalize revenge porn--indeed, Prof. Franks is even working on federal legislation that would make internet companies liable for revenge porn posted by users. They also conclude that "[s]tates should craft narrow statutes that prohibit the publication of non-consensual pornography."

CRL&P related posts:

January 22, 2014 in First Amendment, Freedom of Speech | Permalink | Comments (1)

Tuesday, January 21, 2014

In Defense of 'Super PACs' and of the First Amendment

I have made a habit of posting papers debating various aspects of the post-Citizens United (pre-McCutcheon?) world of campaign finance under the First Amendment. Last week, I posted Outside Influence by Professor Anthony Johnstone, in which he explores the possibility of states and local communities regulating Campaign-finance-4outside campaign spending through the "structural constitutional principles of political community"; and, yesterday, in The Last Rites of Public Campaign Financing?, Professor James Sample ponders the apparently desolate future landscape for proponents of campaign public financing.  The title of today's campaign finance contribution is also the title of this post. In In Defense of 'Super PACs' and of the First Amendment, Professor Joel Gora  argues that Super PACs are not actually the "threats to democracy" claimed by their opponents, but rather they serve as a "[boon to] speech and debate in our political process[.]" Here's the abstract:

This article is a defense of “Super PACs” and of the First Amendment principles that they embody, namely, that we need a robust, wide-open and uninhibited discussion of politics and government in order to make our democracy work. Like the famous Citizens United ruling in 2010, Super PACs have gotten a bad press and have been widely condemned as threats to democracy. But Super PACs are really nothing new. They trace their origins back to Buckley v. Valeo, the Supreme Court’s landmark 1976 free speech ruling which rejected any justification for limiting the independent expenditures for political speech. Thus, the day after Buckley, individuals and groups were free to spend whatever they wished to support or oppose political candidates.  Whether they were allowed to join together for such purposes was less clear. But Citizens United removed any lingering doubt by holding that any speaker – individual, corporate, union, non-profit – was free to make independent expenditures without prohibition or limitation. Based on those principles, a federal appeals court easily and unanimously ruled that what one person or group could do individually, several people or groups could do cooperatively, namely, pool their resources to get out their common message. That is a Super PAC.

As a result, Super PACs played a noticeable role in the 2012 federal elections. But despite popular misconception, they did not dominate or control those elections, accounting for only 10 percent of the campaign spending, almost all contributions to them were fully and publically disclosed, and almost no corporations played any role in any such Super PAC spending. Indeed, so far as is known, extremely few Fortune 500 companies have contributed to support a Super PAC. Rather, Super PACs enabled more speech and debate in our political process, a result to be desired most significantly under the First Amendment. So, rather than being a threat to democracy, Super PACs have been a boon.

CRL&P related posts:

January 21, 2014 in Election Law, First Amendment, Freedom of Speech | Permalink | Comments (1)

Monday, January 20, 2014

The Last Rites of Public Campaign Financing?

The title of this post comes from this paper from Professor James Sample arguing that the current state of the Supreme Court's First Amendment jurisprudence as to campaign finance has created likely overwhelming legal and political obstacles to the viability of public financing options. Here's the abstract:

In the wake of the Supreme Court’s 5-4 decision in Arizona Free Enterprise v. Bennett, this Article asserts the current predicament of public campaign financing is such that options that are still on the table under the Court’s First Amendment jurisprudence are, with only rare and idiosyncratic exceptions, fiscal and political non-starters. Conversely, options that would be, and indeed previously had been, fiscally and politically viable, are now, even after years of their routine practice in varied jurisdictions, no longer constitutional. It is, in short, simultaneously a legal and practical dilemma. 

Short of highly unlikely swings of the Supreme Court pendulum, and absent an even more unlikely constitutional amendment, cities, states, and federal government actors, who might otherwise consider allowing candidates for office to opt for voluntary public financing, now find themselves between a legal rock and a fiscal hard place: unless a jurisdiction adopts, via extraordinarily high initial lump sum funding that grossly overspends the people’s money to the point of fiscal ruin, any candidate opting in is effectively volunteering only to play the role of a sitting duck. 

On the more promising side, this Article asserts that systems that operate based on offering funding as a multiple for small-donor donations offer one potential solution to the dilemma. However, the Article ultimately contends that such systems are particularly vulnerable in jurisdictions with small populations insofar as moneyed interest groups from outside the jurisdiction can easily overwhelm, for example, even the multiplied donations of the citizens of largely rural states or jurisdictions.

January 20, 2014 in First Amendment, Freedom of Speech | Permalink | Comments (0)

Friday, January 17, 2014

Citizens United exception permits state regulation of 'outside influence' in domestic politics

In Outside Influence, Professor Anthony Johnstone argues that states could curtail "outside influence" in state and local politics without violating "the otherwise universal speaker-neutrality rule of Citizens United" under protection of "the structural constitutional principles of political community." Here's the abstract:

By what rights do outsiders influence state or local politics? "Outsiders" include an array of persons other than the citizens of the community, including non-resident individuals, corporations, and various other organizations that channel the influence of those outsiders into a state or local political process. "State or local politics" include all politics, including elections held by states for federal officials. The question recurs in voting, petitioning, campaign finance regulation, and lobbying, as well as other areas related to political activity such as corporate governance. Relatively recent developments have accelerated the nationalization of American politics. These nationalizing forces, including the strengthening of non-party national political interest groups by federal legislation and judicial decisions, and national efforts to counter those groups' interests, pose the question more urgently now. 

This article considers how much outside influence matters to the constitutional analysis of state politics. It defends the principle applied in Bluman v. FEC as an exception to the otherwise universal speaker-neutrality rule of Citizens United, applicable at the state as well as the national level, and to out-of-state as well as foreign outside interests. It does so by drawing parallels between legal efforts to police national and state boundaries in politics, and assessing the competing rights claims of outsiders to cross those boundaries and participate fully in domestic politics. The article suggests that the structural constitutional principle of political community supports certain state regulations, but not prohibitions, of outside influence across a range of political activities.

January 17, 2014 in Election Law, First Amendment, Freedom of Speech | Permalink | Comments (1)

Tuesday, January 14, 2014

NYT Reporter Takes First Amendment Fight to High Court

The question of whether the First Amendment protects the right of the press to conceal the identity of anonymous sources could return to the Supreme Court. The title of this post comes from this National Law Journal article, which explains:

Lawyers for a New York Times reporter tangled up in a fight with federal prosecutors urged the U.S. Supreme Court on Monday to undo an appeals court ruling that would force his testimony in a CIA leak prosecution.

 

B_Image_2635A divided U.S. Court of Appeals for the Fourth Circuit in July overturned a trial judge's ruling that would have allowed James Risen to keep secret the source of information in his book about the George W. Bush administration and intelligence agencies. Risen's book, "State of War: The Secret History of the CIA and the Bush Administration," included details about the National Security Agency's warrantless wiretapping program.

 

Prosecutors want Risen to testify in the government's case against former CIA employee Jeffrey Sterling in federal district court in Alexandria, Va. Sterling is accused of leaking information to Risen about Iran's nuclear weapons program. He was arrested in January 2011 on charges that included disclosure of national defense information and obstruction of justice.

 

U.S. District Judge Leonie Brinkema determined that to "require a reporter to violate his confidentiality agreement with his source under these facts would essentially destroy the reporter's privilege." Brinkema quashed the trial subpoena.

 

Chief Judge William Traxler of the Fourth Circuit concluded, however, that journalists do not enjoy a First Amendment privilege "that protects reporters from being compelled to testify by the prosecution or defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in." Delivering a win to the U.S. Department of Justice, the court voided Brinkema's decision.

January 14, 2014 in First Amendment, Freedom of Press | Permalink | Comments (0)

Monday, January 13, 2014

Old School/New School Speech Regulation

The title of this post comes from this intriguing paper by Professor Jack M. Balkin arguing that the development of "the digital infrastructure of communication" has expanded the opportunities for private expression, and thus has required governments to create new methods of regulating speech. Here's the abstract:

In the early twenty-first century the digital infrastructure of communication has also become a central instrument for speech regulation and surveillance. The same forces that have democratized and decentralized information production have also generated new techniques for surveillance and control of expression.

Unknown-3“Old-school” speech regulation has traditionally relied on criminal penalties, civil damages, and injunctions directed at individual speakers and publishers to control and discipline speech. These methods have hardly disappeared in the twenty-first century. But now they are joined by “new-school” techniques, which aim at digital networks and auxiliary services like search engines, payment systems, and advertisers. For example, states may engage in collateral censorship by threatening Internet intermediaries with liability to induce them to block, limit, or censor speech by other private parties.

Public/private cooperation and co-optation is often crucial to new-school techniques. Because the government often does not own the infrastructure of free expression, it must rely on private owners to assist in speech regulation and surveillance. Governments may use a combination of carrots and sticks, including offers of legal immunity in exchange for cooperation. States may also employ the “soft power” of government influence. Owners of private infrastructure, hoping to reduce legal uncertainty and to ensure an uncomplicated business environment, often have incentives to be helpful even without direct government threats.

Finally, governments have also devised new forms of digital prior restraint. Many new-school techniques have effects similar to prior restraints, even though they may not involve traditional licensing schemes or judicial injunctions. Prior restraints are especially important to the expansion of government surveillance practices in the expanding National Surveillance State. Gag orders directed at owners of private infrastructure are now ubiquitous in the United States; they have become fully normalized and bureaucratized elements of digital surveillance, as routine as they are invisible, and largely isolated from traditional first amendment protections.

(h/t Balkinization)

January 13, 2014 in First Amendment, Freedom of Speech, Web/Tech | Permalink | Comments (0)

Where Free Speech Collides With Abortion Rights

The New York Times's Adam Liptak reports today on McCullen v. Coakley, on which the Supreme Court will hear oral arguments this Wednesday. The Court is tasked with determining the Abortion-6constitutionality of Massachusetts's law prohibiting anti-abortion protesters from entering a 35-foot buffer zone around abortion clinics--a challenge to the Court's 2000 decision in Hill v. Colorado. The title of this post comes from Liptak's article, which begins:

A couple of mornings a week, Eleanor McCullen stakes out a spot outside the Planned Parenthood clinic here and tries to persuade women on their way in to think twice before having an abortion.

 

But she has to watch her step. If she crosses a painted yellow semicircle outside the clinic’s entrance, she commits a crime under a 2007 Massachusetts law.

 

Early last Wednesday, bundled up against the 7-degree cold, Ms. McCullen said she found the line to be intimidating, frustrating and a violation of her First Amendment rights. The Supreme Court will hear arguments on Wednesday in her challenge to the law.

 

The state’s attorney general, Martha Coakley, who is the lead defendant in the suit, said the 35-foot buffer zone created by the 2007 law was a necessary response to an ugly history of harassment and violence at abortion clinics in Massachusetts, including a shooting rampage at two facilities in 1994.

 

“This law is access balanced with speech balanced with public safety,” Ms. Coakley said. “It has worked extremely well.”

Last week, CRL&P commented on Floyd Abrams's related op-ed in The Wall Street Journal.

January 13, 2014 in Abortion, First Amendment, Freedom of Speech | Permalink | Comments (1)

Monday, January 6, 2014

Abrams's unsatisfying WSJ column on the 'most indefensible First Amendment ruling' this century

On January 15, SCOTUS will hear oral argument in  McCullen v. Coakley--the challenge to Massachusetts' law prohibiting anti-abortion protesters from coming within 35 feet of an abortion clinic. The case calls into question the Court's 2000 decision in Hill v. Colorado, in which it upheld a Colorado statute that banned protesters from coming within 100 feet of abortion clinics--or from coming within eight feet of persons approaching the facility. Yesterday, in The Wall Street Journal,  renowned litigator Floyd Abrams called Hill the Court's "most indefensible First Amendment ruling so far this century."  Abrams writes:

According to the state, the 2007 legislation was enacted in response to antiabortion protesters blocking entrances to abortion clinics, harassing women who were seeking abortions, and otherwise impeding their efforts to do so. Both federal and state legislatures had previously sought to deal with such misbehavior. Federal law punishes as a crime those who "by physical obstruction" attempt to "intimidate or interfere" with any person "obtaining or providing reproductive health services." A pre-existing Massachusetts law, passed in 2000, makes it criminal to "knowingly obstruct, detain, hinder, impede, or block another person's entry to or exit from a reproductive health facility." These statutes are narrowly drafted and do not raise any plausible First Amendment objections.

 

In contrast, the 2007 Massachusetts law, with its 35-foot exclusion zone, is anything but narrow in its impact. It effectively prevents Eleanor McCullen and her colleagues from engaging in entirely peaceful, nondisruptive antiabortion advocacy via the distribution of leaflets and oral advocacy at the very places it is most likely to be effective. This is what First Amendment law refers to as "overbreadth"—laws that in the course of criminalizing constitutionally unprotected speech or activities limit or impair speech that is fully protected.

Sadly, Abrams failed even to acknowledge perhaps the most relevant precedent in this case: Burson v. Freeman.  In Burson, the Court considered a challenge to a Tennessee statute that prohibited among other things "the display of campaign posters, signs or other campaign materials, [or the] distribution of campaign materials" within 100 feet of a polling place. The Court concluded that the exercise of First Amendment rights at the polling place "[conflicted] with another fundamental right, the right to cast a ballot in an election free from the taint of intimidation and fraud." Thus, the statute was constitutional.

Like the right to vote, the Supreme Court decision in Roe v. Wade confirms that abortion is a fundamental right.* In both cases, the law restricts First Amendment speech in places where illegal activity has been shown to disrupt the exercise of another fundamental right; the Court's decision in Burson also "effectively prevents...entirely peaceful, nondisruptive [political] advocacy via the distribution of leaflets and oral advocacy at the very places it is most likely to be effective." 

Perhaps Abrams opposes Burson, too. Perhaps not. Or, perhaps he would distinguish the two cases. We don't know, because he didn't say. It would have been helpful for "[t]he dean of the First Amendment bar" to clarify his position.

* Although calling the right to vote fundamental, the Court's jurisprudence makes clear either 1) it is not fundamental; or 2) the Court is confused as to what the right's fundamental status means. But more on this later.

(h/t WSJ's Law Blog)

January 6, 2014 in Abortion, First Amendment, Freedom of Speech | Permalink | Comments (1)

Thursday, January 2, 2014

Has First Amendment protection for student expression gone too far?

In Intellectual Seriousness and the First Amendment's Protection of Free Speech for Student, Professor Allen Rostron argues that First Amendment protection for student expression ought to be limited to that which is sufficiently intellectually serious. Here's the abstract:

Constitutional protection of student speech has been a mixed blessing. There is still something quite inspiring about the notion that young people have worthwhile thoughts to share, and that the Constitution guarantees their right to do so. At the same time, courts have struggled to figure out what limits on student expression should be permitted, and much of the litigation has involved student speech that is disappointingly mindless. The Supreme Court’s seminal ruling in Tinker v. Des Moines Independent Community School District concerned students who wore armbands to express a serious message about an important national issue. Judges and school officials understandably may struggle to keep a straight face when asked to apply the same legal standards to claims that the First Amendment entitles a student to wear a shirt expressing his interest in “Coed Naked Band” or being a “Redneck sports fan.” Treating the intellectual seriousness of a student's expression as a significant factor in the constitutional analysis would make the right to free expression stronger in those situations where student speech truly makes a valuable contribution to a school’s ultimate goal of training young thinkers. It would encourage students who want to communicate controversial messages to do the work necessary to establish that they have a sincere understanding of the issues involved and are not just eager to complain and defy school authorities. And it would simultaneously help to shift responsibility for application of student speech rights away from federal judges and toward school teachers and administrators. In all of these ways, it would ultimately solidify the constitutional protection of student speech and help to fulfill the noble promise of decisions like Tinker.

January 2, 2014 in First Amendment, Schools | Permalink | Comments (2)

Monday, December 30, 2013

Freedom of Dress: State and Private Regulation of Clothing, Hairstyle, Jewelry, Makeup, Tattoos, and Piercing

The title of this post comes from this paper from Professor Gowri Ramachandran arguing for a "freedom of dress as a fundamental right," which would require re-conceptualizing such a right on its own terms--"rather than treating dress merely as an adjunct to speech." Although published several years ago, it remains an intriguing read. Here's the abstract:

This article proposes a legal right to free dress, encompassing clothing, hair, jewelry, makeup, tattoo, and piercing choices. Neither speech rights nor equal protection provide an accurate account of the importance of self-presentation; instead a new theory of freedom of dress is needed, drawing on its unique location at the blurry border of the personal (as an exercise of control over the physical self) and the political and cultural (as the performance of social identity). Four of the most important applications of this theory are found in public schools, private workplaces, prisons, and direct state regulation. These settings require different balances of individual appearance choices against other interests. 

In the workplace, employers should be required to reasonably accommodate employees' dress choices. Even in the absence of a distinct statutory right, conceiving of freedom of dress as a fundamental right would make viable disparate impact and "sex-plus" claims affecting dress under Title VII. On the street, the paucity of important countervailing state interests supports reviewing infringements on the freedom of dress with strict scrutiny and subjecting them to narrow tailoring requirements - rather than treating dress merely as an adjunct to speech. In schools, too, strict scrutiny is appropriate; carving out freedom of dress as a liberty for students may be easier even than carving out student liberties like speech. In prisons, a reasonable accommodation approach is appropriate, but with a much narrower construction of reasonable accommodation than in other settings.

December 30, 2013 in Civil Rights Act, First Amendment | Permalink | Comments (0)

Monday, December 23, 2013

Speak! If you're into that sort of thing...

Today in Forbes, columnist Doug Bandow enters the Free Speech/'Duck Dynasty' kerfuffle by way of his request from Santa to "stop people from confusing the First Amendment with free expression." He starts off well, too. He correctly notes: 

Images-4The A&E network suspended Robertson, but that has nothing to do with the First Amendment, which protects against government suppression of speech. Instead, if I don’t like something you say and don’t want to work or even associate with you, that is just life. In a free society that should be my right—both of expression and association—as basic as your right to voice your opinion.

 

Of course, your family then can threaten to stop working with me, as Robertson’s family has warned A&E. And viewers and potential viewers can decide whether they want to watch or not, which seems to be what most of the country is talking about at the moment. But this battle has nothing to do with the Constitution and the essential framework for a free society. 

All's good and well. I'm in total agreement. Great.

But then Bandow goes further by asking people to refrain from speaking out against speech they find offensive. He writes:

A separate wish, but highlighted by the Duck Dynasty imbroglio, is that people would stop turning every little controversy into a matter of high moral outrage. Why should anyone get excited about what someone on a silly television show says off the set? In a large, complex society like our own, lots of people will believe things and behave in ways which irritate and even outrage us. Life will be better if we generally tolerate the opinions and actions of others.

 

But there’s no reason to turn the world upside down in response to those who believe ObamaCare will make medicine affordable, consider homosexuality to be a sin, think Republicans are terrible people, don’t like atheists or Catholics (or both), make stupid gender-, race-, or ethnic-based remarks, or are generally obnoxious and clueless. You don’t like what they said/did? Minimize your contact at work. Avoid them at the Christmas party. Don’t visit their barbershop. Refuse to respond to their provocations.

 

But don’t try to drive everyone you disagree with from the public square. We all benefit from a diverse, vibrant, and provocative public environment despite the irritations and offenses caused by some. A world turned ever more intolerant, nasty, and threatening by zealous PC police of all sorts will be a truly depressing place. Not to mention that we might end up as victims of the new public Star Chamber as well.

First, A&E is not "public square." Robertson's opponents want his microphone taken away, not the suppression of his ideas. That is, Robertson may continue to say exactly what he believes, but his opponents prefer that he do so from a street corner. The right to free speech is not the right to amplified speech.

Second, the First Amendment envisions precisely the type of confrontation from which Bandow wishes people to shirk. It contemplates the need for individuals to speak out against ideas and opinions with which they disagree, and to offer the solutions they believe will best serve society.

The First Amendment's protection of free and open discussion of ideas is further premised on the understanding that such freedom promotes the social good. That is, only in a free and open marketplace of ideas can citizens make the best judgments about the direction of society and its government. As First Amendment scholar Thomas Emerson wrote:

[Human judgment] can seldom rest at the point any single person carries it, but must always remain incomplete and subject to further extension, refinement, rejection or modification. Hence an individual who seeks knowledge and truth must hear all sides of a question, especially as presented by those who feel strongly and argue militantly for a different view. He must consider all alternatives, test his judgement by exposing it to opposition, make full use of different minds to sift the true from the false...

 

More importantly, the same reasons which make open discussion essential for an intelligent individual judgment make it imperative for rational social judgments. Through the acquisition of new knowledge, the toleration of new ideas, the testing of opinion in open competition, the discipline of rethinking its assumptions, a society will be better able to reach common decision that will meet the needs and aspirations of its members.

How is the marketplace served if people refrain from entering it?

It's not. And calls for people to refrain from entering that space are no less confused than those from people claiming Robertson's suspension oppresses his freedom to speak. 

The Founders imagined a couragous people, not a cowardly one.

December 23, 2013 in Current Affairs, First Amendment, Freedom of Speech | Permalink | Comments (1)

Wednesday, December 18, 2013

Partitioning and Rights: The U.S. Supreme Court’s Accidental Jurisprudence of Democratic Process

The title of this post comes from this article arguing that the Supreme Court's unwillingness to develop a jurisprudential theory of democracy has caused it to resolve new doctrinal questions with existing--but inadequate--tools, resulting in "an accidental, haphazard jurisprudence." Here's the abstract:

In democracies that allocate to a court responsibility for interpreting and enforcing the constitutional ground rules of democratic politics, the sheer importance of the task would seem to oblige such courts to guide their rulings by developing an account of the nature and prominent features of the constitutional commitment to democracy. The U.S. Supreme Court, however, has from the beginning refused to develop a general account – a theory – of how the U.S. Constitution establishes and structures democratic politics. The Court’s diffidence left a vacuum at the heart of its constitutional jurisprudence of democratic process, and like most vacuums, this one was almost immediately occupied. But the Court filled its jurisprudential hole not primarily by invoking principles of democracy – even unstated ones – but by doing instead what reluctant decision makers often do: by reaching for whatever is handy. This reaction took two main forms. First, in the absence of a pertinent theory to guide it, the Court fell back on habit, specifically a habit, developed in its earliest cases, of solving problems of political power and representation by partitioning the electorate – that is, by ordering it subdivided. By resorting reflexively to this approach, the Court soon came to treat partitioning as the preferred solution to most problems of democratic representation. Second, the Court reached for the tools of decision that were most ready at hand, and those tools were individual rights, initially equal protection, then the freedoms of speech and association. But because these tools were ill-suited to the task, the Court ended up stretching First Amendment analysis in these cases beyond its plausible bounds and purposes. A well-ordered democratic state needs a thoughtful and deliberate jurisprudence of democracy and democratic practice. Instead, the Court has provided an accidental, haphazard jurisprudence of habit and availability.

December 18, 2013 in First Amendment | Permalink | Comments (0)

Saturday, December 14, 2013

CRL&P Daily Reads: Dec. 14, 2013

Wednesday, December 11, 2013

California law enforcement arrest operator of revenge porn site

San Diego police yesterday arrested the operator of a revenge porn site and charged him with "31 counts of conspiracy, identity theft, and extortion." According to The Los Angeles Times:

A 27-year-old San Diego man was arrested Tuesday on suspicion of operating a "revenge porn" website and demanding up to $350 to remove sexually explicit photos of women that were often posted by angry former boyfriends or ex-husbands.

 

Kevin Christopher Bollaert was arrested by California Department of Justice agents and is being held at San Diego County jail on $50,000 bail. He faces 31 felony counts of conspiracy, identity theft and extortion.

 

"Online predators that profit from the extortion of private photos will be investigated and prosecuted for this reprehensible and illegal internet activity," said Atty. Gen. Kamala D. Harris.

 

Bollaert allegedly created a website in December 2012 that allows the anonymous posting of nude and sexually explicit photos. The website required that the poster include the subject's name, location, age and Facebook profile.

 

Prosecutors said more than 10,000 images were posted, from California and other states.

As I have said, I believe that laws that subject to criminal liability people who send sexually explicit images of an ex-lover without their consent could be crafted so as to conform to the First Amendment.  This case, however, raises the more difficult question as to whether online publishers of revenge porn ought to be subject to prosecution.

In Bartnicki v. Vopper, the Supreme Court held that the publication of material illegally obtained by a third party is protected by the First Amendment. The Court said: "In this case, privacy concerns give way when balanced against the interest of publishing matters of public importance...We think it clear that a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern." 532 U.S. 514, 536 (2001). However, the Court emphasized that its ruling applied narrowly to matters of "public concern," and it is still unclear what qualifies as such. One would think that revenge porn wouldn't qualify...

Further, assuming that revenge porn is a matter of public concern, there is the question as to whether revenge porn could be considered to have been illegally obtained by a third party. Arguably, revenge porn generally is not obtained illegally; the third party presumably received the image (or took it himself) from its subject. 

In this case, the site operator charged the victims of revenge porn to have pictures of them removed from his site, which perhaps makes this case easier. But, suppose he took the pictures down willingly; and/or suppose he did not include the names or locations of the victims... 

These issues and others will continue to arise as more states criminalize revenge porn. Lawyers and legislators will have to draw lines differentiating the legal from the illegal, which will make these debates increasingly interesting for legal scholars--but painful for victims. 

CRL&P related posts:

December 11, 2013 in First Amendment, Freedom of Speech, Revenge Porn | Permalink | Comments (2)

Tuesday, December 10, 2013

The New Software Jurisprudence and the Faltering First Amendment

In his upcoming article, Professor Liam O'Melinn explores the First Amendment's applicability to computer code and finds that "the new software jurisprudence" is seriously jaundiced because of misunderstandings about the free software movement. The title of this post comes from his article, of which the abstract states:

Courts have recently begun to respond to the call to provide First Amendment protection for software, with ominous results. A debate has raged over the past several years over whether or not computer code should be considered “speech” and therefore be entitled to the full protection of the First Amendment. An examination of important decisions in recent cases attempting to settle this debate requires a revision of the basic assumption that the First Amendment will offer effective protection to programs, their authors, and their users. While there have been judicial decisions which lend credence to the view that the Constitution can be invoked to protect software, subsequent developments in this area, which I term “the new software jurisprudence,” cast severe doubt on the ability of the First Amendment to shield software effectively. These developments include the faults of previous strains of First Amendment analysis and then add more,with the ironic result that the First Amendment may now be used to justify the suppression of expression rather than to prohibit such suppression. 

 

This line of jurisprudence for software threatens a legal revolution premised on the belief that the specter of copyright infringement represents a perpetual emergency. At the same time, it is evident that this legal revolution will have to contend with a counter-revolution brought about by the free software movement. DeCSS represents only the tip of an iceberg which has thus far escaped real notice by the law, but the movement is becoming so important that it will force itself to be recognized. Indeed, it has already mounted a vigorous and to this point successful assault on the trade secret status of the technology which the movie industry has chosen to protect its content. A full investigation of the importance of this phenomenon lies well beyond the scope of this article; for the moment it must suffice to note that the character of open source software and the people who produce it will challenge the legal and economic assumptions at the heart of the law of intellectual property. Free software is not the product of pirates who steal from others and vend their wares in dark corners. Nor is it brought about by the incentives which, according to conventional thinking, are necessary conditions to creativity. The creation of free software, moreover, is an expressive activity which will leave its impress on the law. 

 

As time goes on, the free software programmers will require a revision of the now familiar role of equity in copyright law. The high quality of the software they create, coupled with its truly democratic rights of access, will provide the most telling challenge to the notion that only monopolistic economic incentives can lead to creative excellence. Finally, as their favorite mode of expression works a revolution not only in the way we communicate but in our very conception of property, they will effect fundamental changes in the way in which the law links expression and function . Unfortunately, it is not clear that the First Amendment will help them in their work. The courts have promised to develop legal and constitutional standards appropriate to the character of software, but in this effort they have largely failed. When they begin to focus less on the specter of piracy and more closely on the nature of software and the democratic access to information which it promotes, they will come closer to developing a novel and vital jurisprudence and to fulfilling their promise.

December 10, 2013 in First Amendment, Freedom of Speech, Web/Tech | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 10, 2013

Allegedly illegal strip searches in Milwaukee jail could cost the city millions; man acquitted of drug charges files a civil rights suit against FBI alleging malicious prosecution; police face civil rights suit after officer pleads guilty to child porn; jail staff knew diabetic woman in their care needed insulin perhaps days before she died; Miami Gardens police allegedly used excessive force and denied medical treatment to arrestee; and, man was killed by a police officer who had accidently been tased by another officer.

Atlantic says Obama misled MSNBC's Chris Matthews on NSA surveillance; Guardian reflects on how the debate over surveillance has changed since Snowden's leaks; Nobel-winning writers say NSA surveillance is compromising freedom; Bill Clinton worries about the NSA's collection of economic data; and, NSA makes tech companies worry about profits.

Federal judge holds journalists have no constitutional right to be embedded with military; and, ACLU says prison officials violated the First Amendment by denying reporters access to prisoners after a riot.

Gun manufacturers doing better than before Newtown.

Same-sex couples race to challenge Texas's same-sex marriage ban; and, this graph shows geographical online efforts to promote gay-rights.

 

December 10, 2013 in Civil Rights Litigation, Excessive Force, First Amendment, Fourth Amendment, Freedom of Press, Freedom of Speech, Gun Policy, Prisons and Prisoners, Same-sex marriage, Strip Searches, Web/Tech | Permalink | Comments (0)

Monday, December 9, 2013

Pennsylvania lawmaker expected to introduce bill criminalizing revenge porn

Pennsylvania may be the next state to consider whether to enact legislation criminalizing revenge porn--generally, the non-consensual distribution of nude or sexually explicit photos or videos with the intent to cause emotional distress. State Sen. Judy Schwank (D) is expected to introduce a bill that would make revenge porn a second-degree misdemeanor:

"The nature of these acts is particularly personal and malignant, and the abuse can be devastating to victims, who nationally have lost jobs, had relationships with family and friends severely damaged and found themselves stalked by strangers," Democratic state Sen. Judy Schwank wrote in a memo to other senators seeking co-sponsors for her bill.

 

Currently, authorities can try to punish people through existing laws such as harassment, but Schwank said that isn't always easy and doesn't carry enough penalties.

 

"Even harassment charges apparently would apply only if there is a repeated course of conduct despite the reality that a single Internet posting can result today in an infinite number of viewings," Schwank wrote in her co-sponsorship memo.

 

She said her legislation would make posting such images a second-degree misdemeanor, which is a grade higher than harassment. If the victim is a minor, the penalty would be steeper, a third-degree felony.

Last week, Delegate-elect Marcus Simon introduced a revenge porn bill in the Virginia General Assembly, which the House of Delegates is expected to consider in January. Several other states are considering similar bills, but only California and New Jersey actually have passed such laws. 

With websites peddling revenge porn reportedly growing, these bills seek to provide protection to victims for whom remedies are usually inadequate.

Victims of revenge porn are typically women--like this teacher who was recently suspended from teaching after the school discovered a nude photo of her on a revenge porn site. However, this is not always the case. Recently, a male doctor was the victim of a vengeful ex-lover who retaliated by posting pictures he had sent her. According to The Cincinnati Enquirer:

He was a doctor having an affair with a married patient he was treating for depression.

 

He sent her lewd pictures and videos of himself. When their affair ended, she accused him of retaliating by getting her fired. She responded by posting online the explicit pictures and videos he’d sent her. Then, he asked a judge to force her to keep his pictures private.

 

The case, playing out before Hamilton County Common Pleas Court Judge Norbert Nadel, illustrates the new privacy battles being waged after bitter breakups and relationships forged in an increasingly online world. Similar cases have helped spawn a new catch phrase – “revenge porn” – and have caused legislators to change laws in some states.

 

“The reason for its increase is convenience,” said lawyer John Garon, director of the Northern Kentucky University Law + Informatics Institute. “The camera has become part of the bedroom.”

 

Amelia’s Dolly Beattie is suing Terrence McCoy. She accuses McCoy of taking advantage of his status as her doctor while having sex with her.

Opponents of such legislation typically are concerned that these laws chill protected speech. But, as CRL&P has argued, such forecasts seem improbable. Revenge porn is capable of such narrow defintition that carefully crafted legislation likely would not affect protected First Amendment speech.

CRL&P related posts:

December 9, 2013 in First Amendment, Freedom of Speech, Revenge Porn | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 9, 2013

Senate likely to extend ban on plastic guns, but nexus of gun-control debate has shifted to the states; and, four of five members of the city council in rural Rhode Island town face recalls after recommending changes to process for issuing concealed weapons permits.

Obama about ready to announce changes to NSA surveillance program; major tech companies submit open letter to Obama and Congress demanding new limits on NSA's freedom-harming surveillance; Snowden might testify before the EU Parliament's committee on civil liberties; local law enforcement is using software in NSA-style monitoring of cellphone data, and here's how it does it; and, Sen. Paul calls for a renewed commitment to the Fourth Amendment.

Rutger's basketball player alleges civil rights violations against former coach for allegedly repeated verbal and physical abuse; and, New Orleans settles civil rights lawsuit alleging man was falsely arrested and held for five months.

Editorial lambasts New Mexico prison for placing 71-year-old in solitary confinement for one month on suspicion of bringing meth into the facility.

Internet companies speak out against former Cincinatti Bengals cheerleader's defamation suit after federal judge allows it to proceed.

Lexington facing protests after booking for its New Years Eve party a DJ who previously ran a revenge porn site.

 

December 9, 2013 in Civil Rights Litigation, First Amendment, Fourth Amendment, Freedom of Speech, Gun Policy, Prisons and Prisoners, Revenge Porn, Universities and Colleges, Web/Tech | Permalink | Comments (0)

Saturday, December 7, 2013

CRL&P Daily Reads: Dec. 7, 2013

Thursday, December 5, 2013

School suspends teacher after receiving tip that her photo appeared on revenge porn site

A Cincinnati-area school has placed one of its teachers on administrative leave after receiving a tip that a nude photo of her had been posted on a revenge porn site, according to USA Today. Although the Female-victim-of-domestic-001school has not released the teacher's name, it did send email to staff and parents of its students explaining the situation. Thus, by simply deducing which faculty member has been absent, the school community could easily determine her identity.

Several states are considering whether to enact laws criminalizing revenge porn, but only California and New Jersey have actually passed such laws. Anti-revenge porn activists also will ask Congress to enact federal laws to protect victims of revenge porn.

Opponents have expressed concerns that such laws will chill protected First Amendment speech on the internet, while others worry that such laws  will reach "fine art." But, narrowly tailored legislation criminalizing only the nonconsensual posting of nude images likely would not have that affect.

CRL&P related posts:

December 5, 2013 in First Amendment, Freedom of Speech, Revenge Porn | Permalink | Comments (0)

Wednesday, December 4, 2013

CRL&P Daily Reads: Dec. 4, 2013

Tuesday, December 3, 2013

Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto

The title of this post comes from this article arguing that the Supreme Court's decisions constraining the erection of state-sponsored religious displays have served as a heckler's veto on liberties protected by the Establishment Clause of the First Amendment. Here's the abstract:

Although the First Amendment explicitly protects individuals only against laws made by “Congress,” the Supreme Court has long held that, under the Due Process Clause of the Fourteenth Amendment, the states are forbidden from “depriving” persons of the fundamental individual liberties protected by the First Amendment. Thus, under the so-called doctrine of incorporation, a particular provision of the First Amendment (as well as of the rest of the Bill of Rights) “is made applicable to the states [only] if the Justices are of the opinion that it was meant to protect a fundamental aspect of liberty.’”


Sadly, however, in the landmark decision of Everson v. Board of Education, rather than incorporating a fundamental individual liberty under the Establishment Clause, Justice Black and the Supreme Court instead incorporated an extra-constitutional metaphor with a very tainted historical pedigree. Sometimes the Court even applies the metaphorical “Wall of Separation Between Church and State” in ways that actually restrict, rather than protect, liberty.


Remarkably, in one class of cases the Court has gone so far as to interpret the Establishment Clause as requiring it to act as a judicial censor issuing heckler’s vetoes, judicial decrees which grant one group of citizens the power to deprive another group of citizens of an opportunity to view and enjoy a state-sponsored display or memorial in a public park or building.


The purpose of this article is to search for liberty under the incorporated Establishment Clause and to seek to discern when liberty is advanced and when it is restricted by Supreme Court decisions concerning passive displays and monuments erected by state government as part of a pluralistic public culture.

 

December 3, 2013 in First Amendment | Permalink | Comments (0)

Monday, December 2, 2013

CRL&P Daily Reads: Dec. 2, 2013

Sunday, December 1, 2013

Green, Constitution parties join LPO's suit challenging constitutionality of Ohio's new ballot-access law

Unsurprisingly, the Libertarian Party of Ohio's (LPO) disdain for Ohio's new ballot-access law is shared by the Ohio Green Party and the Ohio Constitution Party, both of which are attempting to join the LPO's suit challenging the constitutionality of the new law. As CRL&P has noted, the lawsuit alleges the law prevents minor parties from holding party primaries, and that it requires minor party candidates to obtain 28,000 signatures--and a minimum of 500 signatures from 8 of Ohio's 16 congressional districts--in order to appear on next year's ballot. Further, beginning in 2015, the law will increase that requirement to 56,000 signatures.

Republicans claim that the law simply responds to the void left after the U.S. Third Circuit Court of Appeals' 2006 decision in Libertarian Party of Ohio v. Blackwell in which the court invalidated the states prior ballot-access law. However, critics contend that the new restrictions are aimed at aiding  Gov. John Kasich's reelection campaign.

In a recent poll, Gov. Kasich leads Democratic challenger Ed Fizgerald 44 to 37 percent.

CRL&P related posts:

 

December 1, 2013 in Election Law, First Amendment, Freedom of Assembly | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 1. 2013

Saturday, November 30, 2013

Qualified Immunity and the First Amendment Right to Record Police

The title of this post comes from this article arguing that judges in First Amendment civil rights cases in which the plaintiff recorded public police activities should first determine the merits of the plaintif's claim. Only after the court has considered the merits should it proceed with defendants' claims to qualified immunity. Here's the abstract:

Recording-policeThis draft article explores Pearson v. Callahan, 129 S. Ct. 808 (2009), in the context of recent nationwide litigation over the First Amendment right to record police officers in public. Pearson v. Callahan gives judges considering a qualified immunity defense to a civil rights lawsuit the discretion to never reach the merits of the lawsuit, deciding only that the right is not “clearly established.” The Court’s opinion in Pearson uprooted Saucier v. Katz, 533 U.S. 194 (2001), which required courts to address the merits before deciding whether a defendant is entitled to qualified immunity.

The doctrinal shift from Saucier to Pearson coincides with an increase in civil rights litigation nationwide concerning the First Amendment right to record police officers in public. Two recent Circuit Court cases, Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012) cert. denied, 133 S. Ct. 651 (U.S. 2012), and Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), have affirmed such a right. While the First and Seventh Circuits have laudably addressed the merits of whether the right exists, all other circuits to address the issue have decided only on immunity grounds, i.e. whether the right is “clearly established.” The focus on immunity has a chilling effect on free speech, in particular the role of citizens to oversee law enforcement officials. The article calls for a return to Saucier's merits-first adjudicatory model in First Amendment civil rights cases to avoid chilling such protected speech.

CRL&P related posts:

 

November 30, 2013 in 42 U.S.C. § 1983, Civil Rights Litigation, First Amendment | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 30, 2013

Three-judge panel reverses dismissal favoring City of Chicago in case alleging it responds more slowly to 911 calls made by Blacks and Hispanics.

WaPo explains how recent abortion decisions affected the Senate's debate over the filibuster.

Columbus Dispatch explores Ohio Bureau of Motor Vehicles panel criteria for reviewing vanity plates.

Voting rights activists claim Los Angeles County redistricting discriminates against Latinos; and, Cleveland Plain Dealer editorial board says pending voting bills restricting early voting and mandating ballot uniformity are voter suppression measures.

French parliament wants to impose new fines on solicitors of prostitution services.

 

November 30, 2013 in Abortion, Election Law, First Amendment, Freedom of Speech, Right to Vote | Permalink | Comments (0)

Thursday, November 28, 2013

CRL&P Thanksgiving Reads: Nov. 28, 2013

NSA has been monitoring the porn-watching habits of suspected radicals, which The Atlantic's Friedersdorf claims is bad for democracy; NSA soon will be split up; The Progressive discusses 'The NSA's New McCarthyism'; Ambinder has a cool NSA org chart; and, Nice, Canada. Real nice.

Cleveland Plain Dealer calls on Senate to oppose pending stand-your-ground bill; Iowa gun club will remain next to school; and, woman sentenced to 20-years in prison after firing a warning shot to deter her allegedly abusive husband released the night before Thanksgiving.

Congresswoman Fudge asks Holder to investigate Ohio's new voting laws; African-American youths pay higher 'time-tax' at the polls; and, Kentucky could be the next state to enact a voter ID law.

Federal judge decides NYPD must proceed with case of Occupy protester claiming an officer grabbed her breast.

 

November 28, 2013 in Civil Rights Litigation, Election Law, First Amendment, Fourth Amendment, Gun Policy, Right to Vote, Voter ID | Permalink | Comments (0)

Wednesday, November 27, 2013

CRL&P Daily Reads: Nov. 27, 2013

Revelations about the extent of the NSA's surveillance program could put international data-sharing agreements at risk; federal judge hears arguments regarding the release of DOJ documents on the legality of NSA's surveillance program; The Atlantic explores the inception of the NSA; and, Microsoft will change encryption to prevent NSA surveillance.

Texas National Guard will allow same-sex couples to apply for benefits immediately; gay teen banned from mall at which he allegedly was attacked; Kentucky couple fined one cent for remaining in county clerks office after closing time to protest same-sex marriage ban; and, judge okays terminally ill woman's request to marry her female partner before Illinois same-sex marriage law becomes effective.

Colorado Democrat resigns after gun-rights advocates successfully petition for her recall; and, Plain Dealer guest columnist argues that Ohio legislature should pass gun-safety laws to prevent children from accessing guns.

Voters claim Lousiana segregated African Americans into one racially-gerrymandering congressional district.

SCOTUS to hear arguments as to constitutionality of ACA's contraceptive rule; and, it will consider the First Amendment rights of Bush protesters alleging official's attempts to disperse them were not supported by valid security interests.

 

November 27, 2013 in Department of Justice, Election Law, First Amendment, Fourth Amendment, Freedom of Assembly, Freedom of Press, Freedom of Speech, Gun Policy, Same-sex marriage | Permalink | Comments (0)

Tuesday, November 26, 2013

Julian Assange unlikely to face U.S. charges over publishing classified documents

The title of this post comes from this Washington Post article reporting that WikiLeaks founder Julian Assange is unlikely to face criminal charges for releasing classified documents. The article begins:

The Justice Department has all but concluded it will not bring charges against WikiLeaks founder Julian Assange for publishing classified documents because government lawyers said they could not do so without also prosecuting U.S. news organizations and journalists, according to U.S. officials.

The officials stressed that a formal decision has not been made, and a grand jury investigating WikiLeaks remains impaneled, but they said there is little possibility of bringing a case against Assange, unless he is implicated in criminal activity other than releasing online top-secret military and diplomatic documents.

“The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists,” said former Justice Department spokesman Matthew Miller. “And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.”

Justice officials said they looked hard at Assange but realized that they have what they described as a “New York Times problem.” If the Justice Department indicted Assange, it would also have to prosecute the New York Times and other news organizations and writers who published classified material, including The Washington Post and Britain’s Guardian newspaper, according to the officials, who spoke on the condition of anonymity to discuss internal deliberations.

 

November 26, 2013 in Department of Justice, First Amendment, Freedom of Press | Permalink | Comments (1)

Monday, November 25, 2013

The New Speech

The title of this post comes from this fascinating article inquiring into the potential for First Amendment challenges as technological developments produce new speech platforms. Here's the abstract:

Could the government prevent Facebook from deleting an individual’s Facebook account without first following government-prescribed procedures? Intervene to require Google to conduct its search engine rankings in a certain manner, or subject Google to legal liability for wrongful termination or exclusion? Require social networks and search engines to prominently reveal the criteria by which their algorithms sort, order, rank, and delete content? Demand that some user information or data be deleted, withheld, made inalienable, non-transferable, ungatherable or uncollectable? Engage in detailed regulation of the intellectual property and privacy relationships that inhere between individual users and the platforms they engage?


6373_K0wXihVG_o-600x424Each of these questions implicates the First Amendment, and as each question reveals, the same stresses that strained the institution of property when Charles Reich wrote The New Property in 1964 confront digital speech in 2014. The most important “speech” of the next century will be generated, intermediated, transformed, and translated by massive computers controlled by powerful institutions: petitions in front of the shopping mall replaced with “Likes” on Facebook and “Votes” on Reddit; sports leagues replaced by leagues of Counter-Strike and Call of Duty; broadcast and cable news replaced by interactive, algorithmically-generated, computer-curated granularly distributed news memes spread via blogs and aggregators.

As more of the activities that were once exclusively the province of the physical world become the province of the digital, more of the issues that once confronted the distribution and allocation of rights in property will confront the distribution and allocation of rights in speech. While the great speech debates of the twentieth century were about the content of speech — that is, what one could say — the great speech debate of the twenty-first century will be about what counts as speech and whose speech counts. Will it be that of institutions and algorithms, or individuals and organic communities?

These are questions courts are already confronting and they are getting the answers wrong. In contrast to scholars who by turns either deemphasize the transformative nature of the New Speech or argue that courts will have little impact on its growth, this Article argues that potentially critical judicial missteps are already occurring. Just as the needs of modern industrial society were delayed and often stymied by the judiciary of the early twentieth century, if we fail to consider the implications of the speech decisions courts make now, the needs of the modern information society may be delayed and stymied by the judiciary of the early twenty-first.

This Article is an effort to explore the ways in which speech platforms represent a new challenge to the First Amendment, one that will require it to bend if we are to prevent the Lochnerization of the Freedom of Speech. It ties together various threads — the power of automation, the centrality and power of Internet media platforms, the doctrines developing in the courts, the actual acts of censorship in which these platforms regularly engage, and the core purposes the First Amendment was designed to serve — to make a sustained argument that we must think seriously about restructuring and dejudicializing the First Amendment if we are to avoid seeing the First Amendment transformed into a powerful shield for the very sorts of censorship it was written to prevent.

 

November 25, 2013 in First Amendment, Freedom of Speech, Web/Tech | Permalink | Comments (0)

Saturday, November 23, 2013

CRL&P Daily Reads: Nov. 23, 2013

Friday, November 22, 2013

CRL&P Daily Reads: Nov. 22, 2013

Thursday, November 21, 2013

Remembering Tinker: The right to vote as expressive conduct

A CRL&P reader recently brought to my attention the Tinker Tour, an ongoing event by the Student Press Law Center to educate students about their First Amendment rights. The tour commemorates Unknown-2the 1969 Supreme Court decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, in which the court affirmed the First Amendment right of high school students to wear black armbands in protest of the Vietnam War.

On Tuesday, Mary Beth and John Tinker visited their former high school to speak to students. The Des Moines Register reports:

The Tinkers were among five Des Moines students suspended in December 1965 for wearing the black armbands.

The siblings received hate mail after their 1965 suspension. The window of the family car was shattered by a brick. Someone threatened to bomb their home. But with the help of American Civil Liberties Union attorney Dan Johnston, they continued to fight for their rights.

After attempts to repeal the decision were shot down by the local school board, the Tinkers, along with then-16-year-old Roosevelt High School student Christopher Eckhart, took their case to court.

The resulting 7-2 U.S. Supreme Court decision guaranteed that students today have the right to express their opinions without fear, said Mike Hiestand, an attorney with the Virginia-based Student Press Law Center, a sponsor of the Tinker Tour.

Tinker is particularly interesting for what the case says--or doesn't say--about what expressive conduct qualifies as speech under the First Amendment, which, of course, depends on context. Writing for the Court, Justice Fortas found "that the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment"; the wearing of the bands "was closely akin to 'pure speech.'" Ibid. at 505. Specifically, the Court observed that the students wore the "black armbands...to exhibit opposition to this Nation's involvement in Vietnam" at a time when the justness of that involvement was being hotly debated. Ibid. at 510-11. ("They wore [the armbands] to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them." Ibid. at 514. ). "[W]e do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet," wrote Justice Fortas. Ibid. at 513.

CRL&P readers know that I believe that the right to vote ought to be protected First Amendment speech. The Tinker case is another example of protected expressive activity that does not materially differ from public voting.

Although voters today choose candidates on the basis of a complicated set of policy issues, this certainly was not the case in the American colonies and the early American Republic. In Voting in Provincial America, Robert J. Dinkin emphasizes "the major concerns of the state were confined to providing defense against external enemies and keeping internal order." As such, the task of voters "was to choose from among rival candidates the men he believed to be the best leaders[.]"

At that time, voting itself had persuasive value. As Richard R. Beeman describes in his book The Varieties of Political Experience in Eighteenth-Century America, viva voce voting commenced with the most prominent men voting first. As such, candidates hoping to win elections would court these men in hope that their support on Election Day would convince voters down the line to support them. George Washington learned this lesson the hard way, losing his first election badly. But, he changed his strategy, and several years later won a seat in the House of Burgesses. As Beeman wrote: "The strategy of marshaling a prominent display of support early in the election was, at least in this case, highly successful, as Washington raced to an early lead that only grew as the day wore on."

Public voting evinced voters' support for candidates and parties, and such practices continued until the end of the 19th century. The Court has granted First Amendment protection to similar expressive acts, as it did in Tinker. Now, the Court ought to extend such protection to the right to vote as well.

For more on the Tinker's story, see Kali Borkoski's commentary on SCOTUSblog.

CRL&P related posts:

 

November 21, 2013 in First Amendment, Freedom of Speech, Right to Vote, Schools | Permalink | Comments (1)

CRL&P Daily Reads: Nov. 21, 2013

Wednesday, November 20, 2013

Criminalizing revenge porn need not violate the First Amendment

Here's one woman's account of her experiences with revenge porn. Notably, her former boyfriend started an eBay auction with nude photos of her, and he linked the auction to several of her employer's Facebook pages. Because she was a professor, co-workers were not alone in viewing the images--several students saw them too.

A year and half later, the images appeared on a porn website.

 

Eventually, she was diagnosed with PTSD and her therapist recommended that she request medical leave. She did. But, her employer was not sympathetic.

The article begins:

UnknownIn February 2010, my ex-boyfriend, Joey (name changed) and I had a fight over a skirt I wore to work. He deemed the skirt too short. He shamed me, called me a hooker, and accused me of sleeping with all my male friends. After watching his jealousy and possessiveness steadily increase over our seven-month relationship, I was at my breaking point. We were over.

The day after the fight, Joey called me at 11:53pm. He was livid. He said he was looking on my Facebook page and from what he could see it was clear I was sleeping with at least three other guys. I tried to rationalize with him, to convince him he was mistaken. But he was too far-gone to hear me.

He threatened to start an eBay auction. If I didn't tell him the truth about how many other guys I was sleeping with, he said he was going to auction off a CD of 88 naked images of me that I allowed him to take after three months of relentless pressure. He said he would send links to the auction to my friends and family, to people at the college where I teach. I shook with desperate fear. I knew no words would change his mind. Joey had flown into a rage, uncontrollable and impervious to reason. I knew my fate, and my only defense was to call the police. I begged and pleaded for him not to carry out his threat.

Then he said the words that would change the course of my life: "I will destroy you."

I called the Baltimore County police and through my sobs tried to explain what was happening and why I needed help. The dispatcher sent an officer to my home who looked down on me as I explained that I wanted him to stop a threat. It was the first of many times I would be told, "There is nothing I can do. No crime had been committed." And at that point, no crime had been committed. I was frantic over a threat, which to the bored officer was nothing to worry about. To me, it was a portent of the misery I'd soon suffer.

The auction went live the following afternoon. I received about three emails from eBay informing me that, "Joseph Mann thought you might like this item on eBay" The link read: (Name of college)MD English Professor Nude Photos!

The concern with revenge porn is not the image, as such. In Jenkins v. Georgia, the Supreme Court ruled that nudity was not obscene (one of the original exceptions to protected First Amendment speech): "There are occasional scenes of nudity [in the film Carnal Knowledge], but nudity alone is not enough to make material legally obscene[.]" 418 U.S 153, 161 (1974).

As always, context matters. Screaming "fire" in a crowded theater is not protected First Amendment speech when there is no fire. But, if the concession stand has erupted in flames...

In Brandt v. Bd. of Education of City of Chicago, 480 F.3d 460 (6th Cir. 2007), Judge Posner observes:

Although freedom of speech and of the press...are often loosely paraphrased as "freedom of expression," and clothes are certainly a way in which people express themselves, clothing as such is not--not normally at any rate--constitutionally protected expression...Self-expression is not to be equated to the expression of ideas or opinions[.]

Whether clothing is protected speech, of course, comes down to the context in which the clothes are worn. "Merely wearing clothes inappropriate to a particular occasion could be a political statement," writes Judge Posner; or, "If Irish people were forbidden to wear green on St Patrick's Day, a natural form of protest would be to wear green on that day."

Because revenge porn legislation deals with the non-consensual publication of images and/or videos, the context is different from pornography that is protected by the First Amendment. 

The principle concern with revenge porn legislation is that it will chill protected speech. As Wisconsin Public Radio reported when revenge porn legislation was introduced there, "[S]tate Rep. Fred Kessler, D-Milwaukee, is concerned the bill is too broad and might restrict people's freedom of expression by limiting the creation and distribution of fine art."

This is a stretch. Revenge porn legislation would forbid the non-consensual publication of nude images, not the publication of nude images. Just as an artist could not yell "fire" in a crowded theater and then claim First Amendment protection for video taken as people flee to safety, an artist should not be able to invoke an ambiguous art justification for the non-consensual publication of nude images. Artists using such images are not producing art, they're creating pain. It's a "scouge." As Justice Scalia has written, "[A] physical assault discloses that the attacker dislikes the victim[,]" but that does not transform the assault into protected First Amendment expression. Nevada Comm'n on Ethics v. Carrigan, 131 S.Ct. 2343, 2350 (2011).

Indeed, as UCLA professor Eugene Volokh has written

I do think that a suitably clear and narrow statute banning nonconsensual posting of nude pictures of another, in a context where there’s good reason to think that the subject did not consent to publication of such pictures, would likely be upheld by the courts. While I don’t think judges and juries should be able to decide, on a case-by-case basis, which statements about a person aren’t of “legitimate public concern” and can therefore be banned, I think courts can rightly conclude that as a categorical matter such nude pictures indeed lack First Amendment value.

I agree. I, too, dislike granting judges the authority to determine what constitutes valid artistic, literary, or political expression. Miller v. California, 413 U.S. 15 (1973). But, what would be (or should be) forbidden by legislation criminalizing revenge porn is not the value of nude images. 

CRL&P related posts:

 

November 20, 2013 in First Amendment, Freedom of Speech, Revenge Porn | Permalink | Comments (1)

CRL&P Daily Reads: Nov. 20, 2013

NSA ignored courts on conduct of domestic surveillance; Supreme Court won't hear challenge to NSA domestic surveillance; and, Rep. Sensenbrenner claims NSA's surveillance program threatens America's economy.

Albuquerque voters reject ban on abortions after 20 weeks; and, Supreme Court won't block Texas abortion law that has caused some clinics to close.

Divided Ohio Supreme Court upholds school district's firing of teacher who refused to remove religious materials from his classroom.

Ohio House committee approves new 'stand your ground' law; gun owners in San Fancisco claim city's large-capacity magazine ban violates the Second Amendment; and, Ohio city looks to repeal several gun laws after legal challenge by gun-rights advocates.

Christian Science Monitor explains how voter ID laws affected 2013 elections; PolitiFact Texas labels claims that no problems resulted from state's new voter ID law 'mostly false'; and women are more likely to be disenfranchised under North Carolina's new voter ID law.

Iowa city required to release records from closed meetings.

Juveniles file a federal lawsuit against Florida county and private prison contractor alleging extremely harsh conditions and overuse of pepper spray.

Governor expected to sign Illinois's law legalizing same-sex marriage later today.

Iowa woman wrongfully terminated for alleging workplace discrimination wants her job back.

 

November 20, 2013 in Abortion, Election Law, First Amendment, Freedom of Religion, Freedom of Speech, Gun Policy, Right to Vote, Same-sex marriage, Science, Voter ID | Permalink | Comments (0)

Tuesday, November 19, 2013

Race or Party? How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere

The title of this post come from Professor Richard Hasen's upcoming article arguing that federal courts ought to use a more exacting analysis of voting laws disproportionately affecting one party's voters. Here's the abstract:

North Carolina, Texas, and other states with Republican legislatures have passed a series of laws making it harder for voters to register and to vote. In response, the United States Department of Justice has sued these states, claiming that the laws violate portions of the Voting Rights Act protecting minority voters. When party and race coincide as they did in 1900 and they do today, it is hard to separate racial and partisan intent and effect. Today, white voters in the South are overwhelmingly Republican and, in some of the Southern states, are less likely to be willing to vote for a Black candidate than are white voters in the rest of the country. The Democratic Party supports a left leaning platform that includes more social assistance to the poor and higher taxes. Some Republicans view such plans as aiding racial minorities.

Given the overlap of considerations of race and considerations of party, when a Republican legislature like North Carolina’s passes a law making it harder for some voters to vote, is that a law about party politics or a law about race? As I explain, if courts call this a law about party politics and view it through the lens of partisan competition, then the law is more likely to stand, and the fight over it will be waged at the ballot box. If the courts call this a law about race and view it through the lens of the struggle over race and voting rights, then the law is more likely to fall and the fight will be settled primarily in the courts. 

The race versus party bifurcation is unhelpful, and the solution to these new battles over election rules — what I call "The Voting Wars" — is going to have to come from the federal courts. Courts should apply a more rigorous standard to review arguably discriminatory voting laws. When a legislature passes an election administration law (outside the redistricting context) discriminating against a party’s voters or otherwise burdening voters, that fact should not be a defense. Instead, courts should read the Fourteenth Amendment’s Equal Protection Clause to require the legislature to produce substantial evidence that it has a good reason for burdening voters and that its means are closely connected to achieving those ends. The achievement of partisan ends would not be considered a good reason (as it appears to be in the redistricting context). These rules will both discourage party power grabs and protect voting rights of minority voters. In short, this new rule will inhibit discrimination on the basis of both race and party, and protect all voters from unnecessary burdens on the right to vote.

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November 19, 2013 in Election Law, First Amendment, Right to Vote, Voter ID | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 19, 2013